Mental Health Act 2007

The Mental Health Bill to amend the 1983 Mental Health Act completed its parliamentary stages on 4 July 2008 and has received Royal Assent, becoming the Mental Health Act 2007.

The legislation governing the compulsory treatment of certain people who have a mental disorder is the Mental Health Act 1983 (the 1983 Act). The main purpose of the Mental Health Act 2007 (the 2007 Act) is to amend the 1983 Act. It also extends the rights of victims by amending the Domestic Violence, Crime and Victims Act 2004. It will introduce "deprivation of liberty safeguards" by amending the Mental Capacity Act 2005 (MCA) in April 2009.

The 1983 Act is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent. It also sets out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated without their consent. The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or safety or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.

The changes in relation to the MCA are in response to the 2004 European Court of Human Rights judgment (HL v UK (Application No.45508/99)) (the “Bournewood judgment”) involving an autistic man who was kept at Bournewood Hospital by doctors against the wishes of his carers. The European Court of Human Rights found that admission to and retention in hospital of HL under the common law of necessity amounted to a breach of Article 5(1) ECHR (deprivation of liberty) and of Article 5(4) (right to have lawfulness of detention reviewed by a court).

Summary

The following are the main changes to the 1983 Act made by the 2007 Act:

• definition of mental disorder: it changes the way the 1983 Act defines mental disorder, so that a single definition applies throughout the Act, and abolishes references to categories of disorder.
• criteria for detention: it introduces a new “appropriate medical treatment” test which will apply to all the longer-term powers of detention. As a result, it will not be possible for patients to be compulsorily detained or their detention continued unless medical treatment which is appropriate to the patient’s mental disorder and all other circumstances of the case is available to that patient. At the same time, the so-called “treatability test” will be abolished.
• professional roles: it is broadening the group of practitioners who can take on the functions currently performed by the approved social worker (ASW) and responsible medical officer (RMO).
• nearest relative: it gives to patients the right to make an application to the county court to displace their nearest relative and enables county courts to displace a nearest relative who it thinks is not suitable to act as such.
• nearest relative: the provisions for determining the nearest relative were amended to include civil partners amongst the list of relatives from 1 December 2007.
• supervised community treatment (SCT): it introduces SCT for patients following a period of detention in hospital. It is expected that this will allow a small number of patients with a mental disorder to be discharged from detention subject to the possibility of recall to hospital if necessary. Currently some patients leave hospital and do not continue with their treatment, their health deteriorates and they require detention again – the socalled “revolving door”.
• electro-convulsive therapy: it introduces new safeguards for patients.
• tribunal: it reduces the periods after which hospital managers must refer certain patients’ cases to the Tribunal if they do not apply themselves and introduces an order-making power to make further reductions in due course. Separate changes to the Tribunal system also come into effect on 3 November: see the Tribunals website at the link below.
• advocacy: it will place a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates. This is on course to be implemented in April 2009.
• age-appropriate services: it will require hospital managers to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs). This is on course to be implemented in April 2010.
• Tribunals Service: Rules and legislation

The changes to the MCA provide for procedures to authorise the deprivation of liberty of a person in a hospital or care home who lacks capacity to consent to being there. The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person’s best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures.

The changes to the Domestic Violence, Crime and Victims Act 2004 introduce new rights for victims of mentally disordered offenders who are not subject to restrictions.

Information from Department of Health website www.dh.gov.uk.  31st October 2008

Intended function of an Independent Mental Health Advocate (IMHA)
(To be implemented in April 2009)

The function of the IMHA will include helping patients in obtaining information about and understanding:

• The provisions of the legislation under which he/she is subject to
• Any conditions or restrictions he/she is subject to
• the medical treatment being given, proposed or being discussed and the authority under which this would be given and the requirement that would apply.

IMHA would also help a patient in obtaining information about and understanding his/her rights and how to exercise those right

In order to provide this help, IMHAs will be able to:

• Visit and interview a patient in private
• Visit and interview any person who is concerned with his/her medical treatment
• Require the production of and inspect any records relating to the detention or treatment in any hospital or registered establishment or to any after-care services provided under sec 117
• Require the production of and inspection of any social services authority records which relate to the patient.

IMHA will only be able to look at records where the patient has capacity and gives consent. IMHA will have a duty to comply with any reasonable request to visit a patient, received from a nearest relative, responsible clinician or approved mental health professional but the patient can decline support from the advocate.

Patients will qualify for an IMHA if:

• they are liable to compulsory treatment under the powers of the Act, except in certain emergency situations
• they are on supervised community treatment
• they are informal patients who are discussing the possibility of treatment to which S57 or S58A applies (neurosurgery for mental disorder or ECT for patient under 18 years).

Information taken from Good Advocacy Practice website.  This is a Department of Health funded Independent Mental Health Advocacy project:  www.advocacymapping.org.uk